McMillan v. Rust College, Inc.
| Decision Date | 01 August 1983 |
| Docket Number | No. 82-4277,82-4277 |
| Parties | 32 Fair Empl.Prac.Cas. 939, 32 Empl. Prac. Dec. P 33,754, 12 Ed. Law Rep. 256 Lottie McMILLAN, Plaintiff-Appellant, v. RUST COLLEGE, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
David O. Bell, David G. Hill, Oxford, Miss., for plaintiff-appellant.
Eugene D. Brown, Jr., Holly Springs, Miss., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before RUBIN and JOLLY, Circuit Judges, and PUTNAM(fn*), District Judge.
This appeal is taken from a decision and judgment of the district court in favor of Rust College, Inc. 1 , ("Rust"), exonerating it in an action brought under Title VII of the Civil Rights Act of 1964 for sex and retaliatory employment discrimination. Appellant, Lottie McMillan ("Ms. McMillan"), who was formerly employed by Rust, claims discrimination in loss of job positions because of sex and finally discharge in retaliation for filing EEOC charges and this federal law suit.
After hearing testimony, the district court found that Rust had not discriminated against Ms. McMillan because of her sex.
It further found that Rust had not retaliated against her in violation of Title VII by terminating her employment. On appeal, Ms. McMillan asks us to reverse the district court's finding of no retaliation. She does not appeal the adverse findings of the district court on her claims of sex discrimination. Because she has failed to convince us that the district court clearly erred in any of its subsidiary findings or its ultimate finding that her termination was not the result of unlawful retaliation, we affirm.
I.
Ms. McMillan is the wife of James C. McMillan, who was the Dean of Students at Rust College. James C. McMillan is the nephew of W .F. McMillan who was and is now President of Rust College.
Ms. McMillan, who received a Bachelor of Science degree from Rust College in 1971, had been employed, beginning in 1972, in various positions at Rust College. At the beginning of the 1979-80 academic year, Ms. McMillan was named Assistant Director of the college's Division of Continuing Education. Eddie L. Smith, Jr., was appointed to be the Division Director. During that academic year, the Division of Continuing Education was restructured. Mr. Smith was assigned to the position of Director of Institutional Research and Federal Relations. Smith's former job was abolished and Ms. McMillan was appointed Coordinator of Continuing Education. Feeling that this position was a downgrade from the eliminated director's position to which she had expected to be named and that the reason for the downgrading was her sex, Ms. McMillan filed a charge of sex discrimination with the EEOC on May 13, 1980. 2
On July 3, 1980, President McMillan wrote a letter to James McMillan in which he evinced considerable displeasure at the fact that a charge had been filed against the college by Ms. McMillan. He also expressed consternation at the fact that James McMillan would allow his wife to hurt the college and implied that he was being disloyal by doing so.
During the 1980-81 academic year, Ms. McMillan served as the Coordinator of Continuing Education. Because she felt that the college was denying her certain benefits and privileges for having filed the EEOC charge, Ms. McMillan filed another EEOC charge on December 15, 1980, alleging retaliation.
On February 9, 1981, Ms. McMillan was informed that her position of Coordinator of Continuing Education was being eliminated at the end of the current academic year. According to President McMillan, this change was to be made because the college's executive council, based on the need for budget cuts and avoiding duplication, felt that the Division of Continuing Education should be merged into the college's four major divisions. The Institutional Testing and Counseling position, and the position of Assistant Director of Institutional Research and Federal Relations were also eliminated.
By a letter dated February 16, 1981, from President McMillan, Ms. McMillan was informed that she would be offered a teaching position in the Division of Social and Behavioral Sciences. Ms. McMillan was advised that she should contact Dr. T.E. McKinney, the Academic Dean, in order to discuss her specific courses and assignments. (See Appendix A.)
On February 17, 1981, Ms. McMillan met with Dr. McKinney in his office. Dr. McKinney advised Ms. McMillan that she would receive a teaching assignment, at which point Ms. McMillan protested that working as a teacher would be demeaning and beneath her dignity, and commenced to voice her general dissatisfaction about the manner in which the college had treated her. With no agreement reached and with tempers rising, Dr. McKinney stopped the meeting and asked Ms. McMillan to leave so that he could dictate some letters about personnel matters to his secretary. Ms. McMillan refused to do so. To avoid a confrontation, Dr. McKinney left his own Ms. McMillan then went to see President McMillan and partially informed him about her meeting with Dr. McKinney, telling him that Dr. McKinney had asked her to leave his office but that she had refused to do so. President McMillan advised her that her appointment to a teaching position would be dependent upon a recommendation by Dr. McKinney and that it would be prudent to apologize for her conduct. Later that afternoon, he was informed by Dr. McKinney that he could no longer recommend Ms. McMillan for employment at Rust.
office and went to President McMillan's office, apparently on other business. Unable to speak to President McMillan at that time, however, Dr. McKinney began to leave the president's office. As he was leaving, he was approached by an irate Ms. McMillan in the hallway who struck his left wrist with a hard object as he attempted to get away from her. Dr. McKinney then told Ms. McMillan that she must be "crazy" and left the building. 3
After her conversation with President McMillan, Ms. McMillan wrote a letter to President McMillan accepting a teaching position in the Division of Social and Behavioral Sciences.
In a February 19, 1981, letter President McMillan, acknowledging receipt of her letter, reminded Ms. McMillan that the teaching position was dependent upon Dr. McKinney's recommendation and suggested that an apology might increase her chances of obtaining the needed recommendation. More than one month later, on March 26, 1981, Ms. McMillan wrote a letter of apology to Dr. McKinney.
Also on March 26, 1981, Ms. McMillan filed this Title VII suit in federal district court against the college. By a letter dated April 3, 1981, Dr. McKinney informed Ms. McMillan that he would not recommend her for a teaching position. On April 20, 1981, he prepared a formal evaluation in which he recommended the termination of her employment.
Between April 3, 1981, and the expiration of her contract on June 30, 1981, Ms. McMillan applied for four non-teaching positions at the college: Job Developer; Director of Cooperative Education; Director of Recruitment and Admissions; and Director of Specialty Services (TRIO). The first two positions were subject to Dr. McKinney's supervision and he recommended two other individuals for these jobs. The Director of Specialty Services (TRIO) position was subject to the supervision of her husband, James McMillan. Because this was a federally funded position, a federal policy against nepotism prevented Ms. McMillan from receiving this position. The Director of Recruitment and Admissions position was also subject to James McMillan's supervision. Mr. McMillan did not recommend his wife for this position because he was under a misunderstanding that the college had a policy against nepotism. His misunderstanding about the college's policy did not result from any actions by college officials. 4
At the request of Ms. McMillan, President McMillan, in a letter of June 23, 1981, set forth the reasons for the college's failure to reappoint her to a faculty position. He stated, among several other reasons, that she had "contumaciously rejected" Dr. McKinney's offer of a teaching position and because of her "contumacious behavior" in doing so, she was not recommended for reappointment. A footnote to the letter stated: (See Appendix B.)
After a three-day trial, the district court held for the college and dismissed the complaint. Ms. McMillan appeals and primarily contends that Rust's asserted reasons for the employment actions which ultimately led to and include her termination in retaliation At the beginning, we note that our standard of review of the findings of fact of this Title VII case is the "clearly erroneous" standard. This is true regardless of whether the finding at issue is one of subsidiary fact or the final fact that there was no retaliation. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 1787-91, 72 L.Ed.2d 66 (1982); Jones v. Lumberjack Meats, Inc., 680 F.2d 98 (5th Cir.1982).
for filing EEOC charges and suing the college were mere pretext. 5
Section 704(a) of Title VII provides in relevant part that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [that employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge ... under this subchapter." 42 U.S.C. Sec. 2000e-3(a). The order and allocation of proof for Title VII cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and clarified in Burdine v. Texas Department of...
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